JMS Sports sp. z o.o. v European Union Intellectual Property Office (T-823/19)

Contents

Judgment of the General Court (Tenth Chamber)20 October 2021^note(Community design — Invalidity proceedings — Registered Community design representing a spiral hair elastic — Disclosure of the earlier designs — Disclosure on the internet — Article 7(1) of Regulation (EC) No 6/2002 — Equality of arms — Evidence submitted for the first time before the General Court)In Case T‑823/19,JMS Sports sp. z o.o., established in Łódź (Poland), represented by D. Piróg and J. Słupski, lawyers,vEuropean Union Intellectual Property Office (EUIPO), represented by E. Śliwińska and D. Walicka, acting as Agents,the other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court, beingInter-Vion S.A., established in Warsaw (Poland), represented by T. Grucelski and T. Gawliczek, lawyers,THE GENERAL COURT (Tenth Chamber),composed of A. Kornezov, President, E. Buttigieg (Rapporteur) and K. Kowalik‑Bańczyk, Judges,Registrar: R. Ūkelytė, Administrator,having regard to the application lodged at the Registry of the Court on 4 December 2019,having regard to the response of EUIPO lodged at the Registry of the Court on 31 March 2020,having regard to the response of the intervener lodged at the Registry of the Court on 23 March 2020,having regard to the Court’s written questions to the parties and their responses to those questions lodged at the Registry of the Court on 25 and 30 November and 1 December 2020,further to the hearing on 15 January 2021,gives the following

Judgment

Background to the dispute

1The applicant, JMS Sports sp. z o.o., is the holder of the Community design filed with the European Union Intellectual Property Office (EUIPO) on 24 June 2010 and registered under number 1723677‑0001, pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), for products defined as ‘bobby pins’, included in Class 28.03 of the Locarno Agreement Establishing an International Classification for Industrial Designs of 8 October 1968.

2The contested design is represented as follows:

3On 3 January 2017, the intervener, Inter-Vion S.A., filed an application for a declaration of invalidity in respect of the contested design on the basis of Article 25(1)(b) of Regulation No 6/2002, read in conjunction with Articles 5 and 6 of that regulation. The intervener maintained that the contested design lacked novelty and individual character in relation, in particular, to the following two designs:– the Fancy Fane design, disclosed on 29 November 2009 on the website ‘http://faneaccessories.blogspot.fr/2009/11’ (‘the “faneaccessories.blogspot”’ website or blog) and represented as follows:– the SwirliDo design, disclosed on 1 November 2009 on the website ‘http://nouveaucheap.blogspot.com/2009/11’ (‘the “nouveaucheap.blogspot”’ website or blog) and mentioned, also, in a screenshot of the website ‘facialwork.com’ of 10 July 2009, obtained through the website archiving service ‘https://archive.org’, also known as the Wayback Machine. The SwirliDo design is represented as follows:

4By decision of 26 June 2018, the Invalidity Division declared the contested design invalid on the ground that it lacked novelty, within the meaning of Article 5 of Regulation No 6/2002, in relation to the SwirliDo design.

5On 13 August 2018, the applicant filed a notice of appeal, under Articles 55 to 60 of Regulation No 6/2002, seeking annulment of the decision of the Invalidity Division.

6By decision of 13 September 2019 (‘the contested decision’), the Third Board of Appeal dismissed the appeal referred to in paragraph 5 above. It found that the disclosure of the earlier designs had been duly proved and that those designs meant that the contested design could not be considered to be new. In that regard, the Board of Appeal concluded, inter alia, first, that the applicant had not succeeded in undermining the credibility of the evidence of disclosure of the earlier Fancy Fane and SwirliDo designs on, at least, the two websites mentioned in paragraph 3 above and, secondly, that the contested design was identical to the two earlier designs referred to above and, consequently, lacked novelty within the meaning of Article 5 of Regulation No 6/2002. In that context, the Board of Appeal pointed out that the applicant did not, at any time during the administrative proceedings, advance any arguments seeking to demonstrate the differences between the contested design and the two earlier designs referred to above.

Forms of order sought

7The applicant claims that the Court should:– annul the contested decision;– order EUIPO to pay the costs, including the costs incurred by the applicant in connection with the proceedings before the Board of Appeal of EUIPO;– order the intervener to bear its own costs.

8EUIPO and the intervener contend that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

Admissibility of Annexes A.5 to A.16 to the application

9EUIPO, supported by the intervener, maintains that Annexes A.5 to A.16 to the application constitute evidence which was not submitted during the administrative proceedings and which was thus submitted for the first time before the Court. EUIPO states that the applicant had the opportunity to produce that evidence during the administrative proceedings but it failed to do so. It therefore concludes that the annexes referred to above must be rejected as inadmissible.

10The applicant argues, in response, that Annexes A.5 to A.16 to the application do not constitute inadmissible evidence and do not alter the subject matter of the dispute. According to the applicant, those annexes do not constitute evidence, but serve only to facilitate understanding of its arguments relating, in particular, to the potential to manipulate the information shown on websites, such as blogs. The applicant states that the documents contained in the annexes referred to above can be created, at any time, by using generally accessible information-technology tools.

11It should be recalled that the purpose of actions before the Court is to review the legality of the decisions of the Boards of Appeal of EUIPO within the meaning of Article 61 of Regulation No 6/2002, the legality of which must be assessed in the light of the information available to them when they adopted those decisions (see, to that effect, order of 13 September 2011, Wilfer v OHIM, C‑546/10 P, not published, EU:C:2011:574, paragraph 41 and the case-law cited). It follows that it is not the Court’s function to review the facts in the light of documents which have been produced for the first time before it (see judgment of 27 February 2018, Gramberg v EUIPO – Mahdavi Sabet (Case for a mobile telephone), T‑166/15, EU:T:2018:100, paragraph 17 and the case-law cited).

12It is apparent from the case file that the documents attached in the abovementioned Annexes A.5 to A.16 were not produced before the Board of Appeal, notwithstanding the fact that the applicant had the opportunity to do so, but were produced for the first time before the Court. It follows that, pursuant to the case-law cited in paragraph 11 above, the documents referred to above must be rejected as inadmissible, inasmuch as they do not form part of the factual context of the dispute such as it was before the Board of Appeal and cannot, consequently, be taken into account for the purposes of reviewing the legality of the contested decision.

13That conclusion cannot be called into question by the applicant’s claim that the documents referred to above were obtained through the use of tools such as the search engine Google and the Wayback Machine, which are freely accessible and can be reproduced at any time. That circumstance, invoked by the applicant, does not affect the finding that, if the Court took into account the evidence referred to above in its assessment, it would be carrying out a review of the facts in the light of documents which were not produced before the Board of Appeal, thereby exceeding the limits of the review of the legality of the contested decision which it is obliged to carry out under Article 61 of Regulation No 6/2002.

14On the basis of the foregoing considerations, Annexes A.5 to A.16 to the application must be rejected as inadmissible.

Substance

15In support of the action, the applicant raises three pleas in law, alleging infringement, respectively, of Article 5(1) and Article 7(1) of Regulation No 6/2002 taken together, of the rule on the allocation of the burden of proof and of the principle of equality of arms.

First plea in law, alleging infringement of Article 5(1) of Regulation No 6/2002 in conjunction with Article 7(1) of that regulation

16In this plea in law, the applicant contests the earlier timing of the making available to the public of a design which is identical to the contested design, within the meaning of Article 7(1) of Regulation No 6/2002. More specifically, it contests the probative value of the evidence produced by the intervener in order to demonstrate that that disclosure was made earlier. On the other hand, the applicant does not dispute that the designs at issue, consisting of spiral-shaped hair elastics, are identical within the meaning of Article 5 of Regulation No 6/2002.

17EUIPO and the intervener contest the applicant’s arguments.

18Article 25(1)(b) of Regulation No 6/2002 provides, inter alia, that a Community design is to be declared invalid if it does not fulfil the requirement relating to novelty laid down in Article 5 of that regulation.

19According to Article 5(1)(b) of Regulation No 6/2002, a registered design is to be considered to be new if no identical design has been made available to the public before the date of filing of the application for registration of the design for which protection is claimed, or, if priority is claimed, the date of priority.

20Article 5(2) of Regulation No 6/2002 specifies, in addition, that designs are to be deemed to be identical if their features differ only in immaterial details.

21Under Article 7(1) of Regulation No 6/2002, for the purpose of applying, inter alia, Article 5(1)(b) of that regulation, a design is to be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, before the date of filing of the application for registration of the design for which protection is claimed, except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union. The design is not, however, to be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality.

22According to settled case-law, a design is deemed to have been made available once the party relying thereon has proven the events constituting disclosure (see judgment of 27 February 2018, Case for a mobile telephone, T‑166/15, EU:T:2018:100, paragraph 22 and the case-law cited).

23The disclosure of an earlier design cannot be proven by means of probabilities or suppositions but has to be demonstrated by solid and objective evidence of actual disclosure of the earlier design on the market (see judgment of 27 February 2018, Case for a mobile telephone, T‑166/15, EU:T:2018:100, paragraph 23 and the case-law cited).

24It is also clear from case-law that the evidence provided by the applicant for a declaration of invalidity must be considered in its entirety. Although some of that evidence may be insufficient in itself to prove disclosure of an earlier design, when combined or read in conjunction with other documents or information, it may nevertheless contribute to establishing disclosure (see judgment of 27 February 2018, Case for a mobile telephone, T‑166/15, EU:T:2018:100, paragraph 24 and the case-law cited).

25In addition, according to case-law, in order to assess the evidential value of a document, it is necessary to verify the plausibility and the accuracy of the information which that document contains. It is necessary to take account of, inter alia, the origin of the document, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see judgment of 27 February 2018, Case for a mobile telephone, T‑166/15, EU:T:2018:100, paragraph 25 and the case-law cited).

26Neither Regulation No 6/2002 nor Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002 L 341, p. 28) specifies the mandatory form of the evidence that must be adduced by the invalidity applicant to show that the earlier design was disclosed before the date on which the application for registration of the design at issue was filed. It follows that, first, an applicant for a declaration of invalidity is free to choose the evidence which it considers useful to submit to EUIPO in support of its application for a declaration of invalidity and, secondly, EUIPO is obliged to examine all the evidence submitted to it in order to determine whether it actually proves disclosure of the earlier design (see judgment of 13 June 2019, Visi/one/EUIPO – EasyFix (Display holder for vehicles), T‑74/18, EU:T:2019:417, paragraph 21 and the case-law cited).

27In the present case, it is apparent from paragraphs 4 and 24 of the contested decision that the Board of Appeal relied, principally, on the following evidence, produced by the intervener, to reach the conclusion that the earlier designs had been disclosed:– the screenshot of the ‘faneaccessories.blogspot’ website, showing the Fancy Fane design, dated 29 November 2009 (see the first indent of paragraph 3 above);– the screenshot of the ‘nouveaucheap.blogspot’ website, showing the SwirliDo design, dated 1 November 2009 (see the second indent of paragraph 3 above);– the screenshot of the website ‘facialwork.com’, dated 10 July 2009, obtained through the Wayback Machine, mentioning the SwirliDo design (see the second indent of paragraph 3 above).

28In addition, as is apparent from paragraph 33 of the contested decision, the Board of Appeal also took into account additional evidence produced by the intervener, seeking to demonstrate the authenticity of the screenshots of the ‘nouveaucheap.blogspot’ website regarding the SwirliDo design. That additional evidence was:– posts published in 2009 on the ‘nouveaucheap.blogspot’ website in respect of beauty products other than hair elastics;– a screenshot displaying the results of a search carried out on Google which confirmed that the post entitled ‘SWIRLIDO OR SWIRLIDON’T?’ was published on the ‘nouveaucheap.blogspot’ blog on 1 November 2009;– a document from the Wayback Machine confirming that the ‘nouveaucheap.blogspot’ website was in operation in 2009.

29The Board of Appeal found, in paragraph 25 of the contested decision, that the appearance of a picture of a design on the internet was an event that could be described as ‘publication’ for the purposes of Article 7 of Regulation No 6/2002 and therefore represented a disclosure, unless that event could not reasonably have become known to the circles specialised in the sector concerned. It pointed out, in paragraph 26 of the contested decision, that the applicant did not dispute the fact that a publication on the internet may represent disclosure, but that it disputed the ‘credibility’ or ‘reliability’ of the screenshots of the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ websites.

30The Board of Appeal concluded, in paragraph 39 of the contested decision, that the applicant had not succeeded in undermining the credibility of the evidence of disclosure of the earlier design on, at least, the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ websites.

31That conclusion by the Board of Appeal is not vitiated by error.

32In that regard, in the first place, it should be pointed out that Article 7(1) of Regulation No 6/2002 provides only examples of possible cases of disclosure (by using the terms ‘published following registration or otherwise’, ‘exhibited’, ‘used in trade’), and not an exhaustive list (‘otherwise disclosed’). In addition, it has already been specified that there were no limits on the place where disclosure had to take place in order for a design to be deemed to have been made available to the public (see, to that effect, judgment of 13 February 2014, H. Gautzsch Großhandel, C‑479/12, EU:C:2014:75, paragraph 33). On the basis of those factors, it is necessary to uphold the finding of the Board of Appeal, in paragraph 25 of the contested decision, that the appearance of a picture of a design on the internet is an event that can be described as ‘publication’ and therefore amounts to ‘making available to the public’ for the purposes of Article 7(1) of Regulation No 6/2002.

33In the second place, it should be pointed out that the screenshots of the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ websites clearly displayed the Fancy Fane and SwirliDo designs, which were identical to the contested design. In addition, the screenshots referred to above clearly displayed the complete URLs (Uniform Resource Locators) of two websites, as well as the dates on which they were made available to the public, namely 29 November and 1 November 2009 respectively. Those dates are earlier than the date of filing of the application for registration of the contested design, namely 24 June 2010.

34In the third place, it should be observed that the screenshot of the ‘nouveaucheap.blogspot’ website displayed other information showing the date and time, demonstrating that the SwirliDo design was made available to the public on 1 November 2009. That other information showing the date and time consisted of internet users’ comments, dated 1 and 2 November 2009 and specifying the time of their publication, on the post entitled ‘SWIRLIDO OR SWIRLIDON’T?’, which consisted of a review of hair elastics bearing the trade name SwirliDo.

35In the fourth place, no challenge was made in respect of the finding, in paragraph 22 of the contested decision, that the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ websites were blogs which specialised in beauty accessories, introducing and reviewing products so that the interested public could see those products and exchange opinions on them. No challenge was made either in respect of the finding, in paragraph 31 of the contested decision, that the two blogs referred to above were distinct from one another. The fact that the two blogs referred to above, which are distinct from one another, specialise in the field of beauty accessories strengthens, in the light of the nature of the products involved, the probative value of the screenshots of those blogs, submitted by the intervener as evidence.

36In the fifth place, it must be found that the fact that the SwirliDo design was disclosed in 2009 is corroborated by the following three pieces of evidence produced before the Board of Appeal. First, it is corroborated by the screenshot of the website ‘facialwork.com’ of 10 July 2009, obtained by means of the Wayback Machine, which screenshot makes reference to the product SwirliDo hair ties. Secondly, it is corroborated by the result of a search on the search engine Google which associates the SwirliDo design with the year 2009. Thirdly, it is corroborated by the result of a search carried out through the Wayback Machine, demonstrating that the ‘nouveaucheap.blogspot’ website was in operation in 2009.

37The evidence set out in paragraphs 33 to 36 above, assessed as a whole, demonstrates, to the requisite legal standard, that the Fancy Fane and SwirliDo designs, which are identical to the contested design, were made available to the public, in November 2009 at the latest, by their inclusion on two websites specialising in the field of beauty accessories.

38That conclusion is not called into question by the applicant’s arguments.

39In the first place, the applicant maintains that screenshots of websites have limited probative value for the purposes of demonstrating that a design has been made available to the public and that they must be corroborated by more credible evidence for the purposes of so demonstrating. In support of that argument, the applicant invokes paragraph 5.5.1.5 of the EUIPO document entitled ‘Guidelines for examination of registered Community designs’ (‘the EUIPO Design Guidelines’) of 1 October 2017.

40That argument by the applicant cannot be accepted.

41It should be recalled that an applicant for a declaration of invalidity is free to choose the evidence which it considers useful to submit to EUIPO in support of its application for a declaration of invalidity and that EUIPO is obliged to examine all the evidence submitted to it in order to determine whether it actually proves disclosure of the earlier design (see paragraph 26 above). Thus, it must be found that neither the applicable legislation nor the case-law corroborates the applicant’s argument relating to the limited probative value of screenshots.

42In addition, contrary to the applicant’s claims, the version of the EUIPO Design Guidelines dated 1 October 2018, which was in force on the date of the adoption of the contested decision, is no more supportive of its argument on the limited probative value of screenshots. Those guidelines specified, in paragraph 5.5.1.5, that information disclosed on the internet or in online databases was considered to be publicly available as of the date the information was published. They admittedly indicated that the nature of the internet could make it difficult to establish the actual date on which information was published. However, they indicated that the date of disclosure on the internet was to be considered reliable where one of the following four situations applied:– the website at issue provides time-stamp information relating to the history of modifications applied to a file or web page (for example, as available for Wikipedia or as automatically appended to content, for example forum messages or blogs);– indexing dates are given to the web page by search engines;– a screenshot of a web page bears a given date; or– information relating to the updates of a web page is available from an internet archiving service such as the Wayback Machine.

43Thus, the version of the EUIPO Design Guidelines dated 1 October 2018 in no way called into question the probative value of the screenshots of the websites in question, but it provided some clarification regarding the determination of the relevant date of disclosure on the internet. The contested decision is compliant with the guidelines referred to above inasmuch as it relies, inter alia, on the screenshots of the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ sites, which, as was pointed out in paragraph 33 above, bore specific dates, namely 29 November 2009 and 1 November 2009 respectively, thereby establishing, in accordance with the guidelines referred to above (see the third indent of paragraph 42 above), the date on which the earlier Fancy Fane and SwirliDo designs were made available to the public.

44It is apparent from the reasoning contained in paragraphs 41 to 43 above that the applicant’s argument relating to the limited probative value of screenshots of websites must be rejected.

45In the second place, the applicant argues that there is significant potential for alteration of the content of blogs published on the platform ‘Blogger.com’, under the subdomain ‘blogspot.com’, such as the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ blogs in the present case. According to the applicant, the platform ‘Blogger.com’ makes it possible to create blog posts ex nihilo and attribute an earlier date to them, but also to alter the date of publication of an already existing post, by replacing it with an earlier date. Subsequently, that date may, according to the applicant, be indexed by the search engine Google and appear among search results, giving the impression that a post was published prior to the actual date of its publication. The applicant adds that the potential to backdate content also applies to comments on posts published on the platform ‘Blogger.com’. The applicant concludes that a mere screenshot of a website displaying a post from the platform ‘Blogger.com’, with no confirmation from, for example, the Wayback Machine, must be regarded as less credible evidence than the same screenshot of another website which does not offer such great potential for alteration of its essential elements.

46The applicant also argues that the fact that, according to the case-law of the EU Courts, the Wikipedia website cannot be regarded as an entirely credible source, on account of the significant potential for alteration of the code, corroborates its argument that mere screenshots of posts published on the platform ‘Blogspot.com’ must be treated with a great deal of caution as to their probative value.

47Moreover, the applicant maintains that there is, in the present case, serious, concrete evidence giving rise to doubts as to the credibility of the screenshots of the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ websites.

48In that regard, the applicant explains, in essence, that a search via the search engine Google for the post ‘TC0100201 – Thick telephone coil rubber band’ appearing on the screenshot of the ‘faneaccessories.blogspot’ website and for the post ‘SWIRLIDO OR SWIRLIDON’T?’ appearing on the screenshot of the ‘nouveaucheap.blogspot’ website fails to give any results if that search is limited to dates which are close to the alleged dates of publication of those two posts. According to the applicant, that absence of results in the search by means of the search engine Google gives rise to doubts regarding the actual date of publication of the posts referred to above and, consequently, of the making available to the public of the Fancy Fane and SwirliDo designs, inasmuch as, if the two posts referred to above were indeed published on 29 November 2009 and 1 November 2009 respectively, they would, in all likelihood, be indexed by the search engine Google as at dates which are close to their alleged publication dates and they would consequently appear in the results of the Google search carried out. In support of that argument, the applicant submitted Annexes A.9 to A.13 to the application.

49Regarding the applicant’s argument set out in paragraph 45 above, it must be found that that argument seeks to demonstrate, in an abstract and theoretical manner, the potential for manipulation of the content of the blogs. However, as the Board of Appeal correctly points out in paragraph 29 of the contested decision, the mere abstract possibility that the content or date of a website may be manipulated is not a sufficient ground to undermine the credibility of evidence constituted by a screenshot of that website. That credibility may be undermined only by invoking facts that concretely suggest a manipulation (see, to that effect, judgments of 27 February 2018, Case for a mobile telephone, T‑166/15, EU:T:2018:100, paragraph 90, and of 27 February 2020, Bog-Fran v EUIPO – Fabryki Mebli ‘Forte’ (Furniture), T‑159/19, not published, EU:T:2020:77, paragraphs 28 and 29). In accordance with the findings of the Board of Appeal in paragraph 29 of the contested decision, such facts may include clear signs of falsification, manifest contradictions in the information shown or obvious inconsistencies that may reasonably justify doubts as to the genuineness of the screenshots of the websites at issue.

50However, it must be found that the applicant has failed to invoke such concrete facts undermining the credibility of the screenshots of the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ blogs and has merely set out the potential which exists, in theory, to alter the content and date of the posts and comments relating thereto on the blogs published on the platform ‘Blogger.com’. That argument cannot, consequently, be accepted.

51In that context, it must also be made clear that the applicant’s argument, set out in paragraphs 47 and 48 above, relating to the alleged existence of ‘serious, concrete’ evidence giving rise to doubts regarding the credibility of the screenshots of the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ blogs, must be rejected without there being any need to rule on its admissibility, which was questioned by EUIPO. It is not disputed that that argument is based on annexes considered to be inadmissible (see paragraphs 9 to 14 above) and that therefore its merits cannot, in any event, be regarded as established. In particular, the argument referred to above is based on the premiss that the search engine Google indexes websites (in this case, the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ blogs) on a date which is close to the dates of their alleged appearance on the internet. However, that premiss has not been demonstrated by the applicant.

52Regarding the applicant’s argument based on the case-law of the EU Courts relating to the Wikipedia website (see paragraph 46 above), it should be pointed out that, according to that case-law, a Wikipedia article constitutes information lacking certainty as it is taken from a collective encyclopaedia established on the internet, the content of which may be amended at any time and, in certain cases, by any visitor, even anonymously (judgment of 16 June 2016, Fútbol Club Barcelona v EUIPO – Kule (KULE), T‑614/14, not published, EU:T:2016:357, paragraph 47). However, both EUIPO and the intervener maintained, without challenge by the applicant, that, unlike the content of the Wikipedia website which can be edited at any time by the users of that site, the content of blogs can be edited only by their authors and not by third parties. In the light of the much more limited potential for alteration of the content of blogs in comparison with such potential as regards the content of the Wikipedia website, the applicant’s argument based on the case-law relating to that website does not corroborate its argument relating to the limited probative value of screenshots of blog posts. In any case, the fact remains that the applicant failed to invoke any serious, concrete evidence capable of giving rise to doubts as to the credibility of the screenshots of the ‘faneaccessories.blogspot’ and ‘nouveaucheap.blogspot’ blogs.

53In the third place, the applicant contests the reliability of the results generated by the Wayback Machine. In that regard, it invokes, inter alia, a 2017 presentation in which a member of a Board of Appeal of EUIPO indicated that the use of the Wayback Machine as a tool to demonstrate the earlier disclosure of a design created certain uncertainties, especially regarding the images published on the websites which are archived in the Wayback Machine. Those uncertainties are linked to the fact that the stated date of the versions of the websites archived in the Wayback Machine relates only to the content of the HTML file of those sites and not to the images which are connected to those sites as external content. Thus, the images appearing on the screenshot of a website may not have been archived on the same date as the HTML file. It follows that, in order to establish when an image was archived, it is necessary to verify its URL. In addition, it is also possible that the date of an image may not appear, for example, where that image is not archived.

54In that context, the applicant contests the probative value of the screenshot of the website ‘www.facialwork.com’ of 10 July 2009, taken from the Wayback Machine, mentioning the SwirliDo design (see the second indent of paragraph 3 above and the third indent of paragraph 27 above). The applicant points out that that screenshot does not include any photographs or images making it possible to establish to which design reference is made, so that it does not provide the ability to prove the disclosure of an earlier design, identical to the contested design.

55The applicant’s argument, set out in paragraphs 53 and 54 above, cannot be accepted.

56It is sufficient to point out, in that regard, and irrespective of the probative value of the results generated by the Wayback Machine, that the Board of Appeal did not rely exclusively on that evidence, but took into account the screenshot taken from the Wayback Machine (see the second indent of paragraph 4 of the contested decision) as evidence which corroborates the information available from the screenshot of the ‘nouveaucheap.blogspot’ website, according to which the SwirliDo design was disclosed on that site in November 2009. The Board of Appeal thus assessed the screenshot taken from the Wayback Machine not in isolation, but in conjunction with other evidence.

57In that context, the applicant’s argument set out in paragraph 54 above must be rejected. The screenshot taken from the Wayback Machine which is the subject of that argument makes explicit reference to the SwirliDo product mentioned in the screenshot of the ‘nouveaucheap.blogspot’ website and describes it as a hair tie. The prices indicated in the two screenshots are, also, the same. In addition, the screenshot taken from the Wayback Machine contains expressions such as ‘neutral colors’, ‘jelly colors’ and ‘no pony lines’, which can also be seen in the screenshot of the ‘nouveaucheap.blogspot’ website.

58Thus, even though the screenshot taken from the Wayback Machine does not contain any images of the SwirliDo product, it is possible to deduce from the evidence set out in paragraph 57 above, taken as a whole, that that screenshot refers to the same SwirliDo product as that displayed in the screenshot of the ‘nouveaucheap.blogspot’ website. It follows that the screenshot taken from the Wayback Machine constitutes a source of relevant information corroborating the reliability of the screenshot of the ‘nouveaucheap.blogspot’ website and that it was correctly taken into account by the Board of Appeal for the purposes of assessing the disclosure of an earlier design, identical to the contested design.

59In the fourth place, the applicant contests the probative value of the screenshot representing the results of a search on the search engine Google which associates the SwirliDo design with the year 2009 (see the second indent of paragraph 28 above). In support of its claim, the applicant questions, in general terms, the credibility of evidence in the form of results of searches on the search engine Google. The applicant explains, in essence, that those search results show the date of publication of a web page as the time when that page was indexed by the search engine Google and not the actual date of publication. According to the applicant, it is not possible from the results of searches in the search engine Google to check whether the actual date of publication of a web page has been manipulated and, as a result, the display of a date in the results of searches on the search engine Google does not constitute credible evidence that a web page was created on that date.

60That argument cannot be accepted either. It should be observed that, by its argument, the applicant raises the abstract and theoretical possibility that the result of the search on the search engine Google, described in the second indent of paragraph 28 above, does not show the actual date of publication of the post ‘SWIRLIDO OR SWIRLIDON’T?’, without producing concrete evidence calling into question the credibility and probative value of the search result referred to above. Moreover, it must be found that the search result referred to above is corroborated by other evidence demonstrating that the SwirliDo design was disclosed on the ‘nouveaucheap.blogspot’ blog on 1 November 2009 and, in particular, by the screenshot of the blog referred to above (see the second indent of paragraph 27 above).

61In the fifth place, the applicant, in order to call into question the credibility of the screenshot of the ‘faneaccessories.blogspot’ blog (see the first indent of paragraph 3 above and the first indent of paragraph 27 above), maintains that that blog itself lacks credibility. In support of that argument, the applicant invokes, first, the fact that all the publications on that blog date from November or December 2009 and that that blog was not in operation either before or after those dates. It was, consequently, a short-lived blog. Secondly, the applicant points out that a search, on the search engine Google, for the keyword ‘www.faneaccessories.blogspot.com’, limited to the period between 1 November 2009 and 27 June 2010, does not give any results, as Annex A.16 to the application demonstrates. Thirdly, the applicant argues that the posts contained in that blog are succinct and amount only to one or more photographs of products and a few words of description. The blog does not include comments either. Fourthly, the applicant maintains that the blog and the post entitled ‘TC0100201 – Thick telephone coil rubber band’ had not been indexed by the Wayback Machine prior to 2013, in the case of the blog, and prior to 2017 in the case of the post. In support of the last argument, the applicant submitted Annexes A.14 and A.15 to the application.

62Without there being any need to rule on its admissibility, which was questioned by EUIPO, the applicant’s argument, set out in paragraph 61 above, cannot be accepted. That argument is based essentially on suppositions which are not supported by evidence, as Annexes A.14, A.15 and A.16 are considered, in all the circumstances, to be inadmissible (see paragraphs 9 to 14 above). More specifically, the argument that the ‘faneaccessories.blogspot’ blog is not credible, on account of its short-lived nature, the succinctness of the posts published on that blog and the absence of comments by internet users, constitutes a supposition. The arguments regarding the search on the search engine Google and the search on the Wayback Machine are also based on the supposition that the search engine Google and the Wayback Machine index websites and their content on a date which is close to the date of their alleged appearance on the internet. However, that supposition relating to the way in which the search engine Google and the Wayback Machine work is not supported by any evidence (see, also, paragraph 51 above). Consequently, it must be concluded that the applicant’s arguments cannot undermine the probative value of the screenshot of the ‘faneaccessories.blogspot’ blog, which, as has already been pointed out (see paragraph 33 above), clearly displays the URL of the blog and the Fancy Fane design and, importantly, indicates the date of the publication of the post ‘TC0100201 – Thick telephone coil rubber band’ and, consequently, the date on which the design referred to above was made available to the public.

63In the sixth place, it should be pointed out that the applicant does not maintain that the events constituting disclosure of the Fancy Fane and SwirliDo designs, invoked by the intervener, could not, in the normal course of business, reasonably have become known to the circles specialised in the sector concerned operating within the European Union, within the meaning of Article 7(1) of Regulation No 6/2002.

64In the light of the foregoing considerations, the Board of Appeal’s conclusion that the intervener proved the events constituting disclosure of the earlier Fancy Fane and SwirliDo designs is not vitiated by error. As a result, the first plea in law must be rejected.

Second plea in law, alleging infringement of the rule on the allocation of the burden of proof

65The applicant, working on the premiss that it is for the applicant for a declaration of invalidity in respect of the design at issue to demonstrate the earlier timing of the making available to the public of a design which is identical to it, maintains that the Board of Appeal, in the present case, infringed that rule on the allocation of the burden of proof, inasmuch as it recognised the probative value of mere screenshots of websites and required the applicant to undermine that probative value. By proceeding in that manner, EUIPO unlawfully transferred to the applicant the burden of proof which lay with the intervener.

66On that basis, the applicant maintains that the Board of Appeal infringed Article 63(1) of Regulation No 6/2002, read in conjunction with Article 28(1)(b)(v) and (vi) of Regulation No 2245/2002, provisions from which it is apparent that it is for the person seeking to have the Community design at issue declared invalid to produce evidence demonstrating the circumstances justifying the declaration of invalidity.

67As part of this plea in law, the applicant also contests the Board of Appeal’s finding contained in paragraph 29 of the contested decision, under which the probative value of a printout from a website cannot be undermined purely on the basis of the abstract possibility that the date or content of that website may be manipulated. According to the applicant, the position of the Board of Appeal affects legal certainty and the rights of the holder of the design at issue inasmuch as it is very difficult for the holder to demonstrate well-concealed manipulation of a website. The applicant explains that the holder of the design at issue is not in a position to have the website access rights of, for example, an administrator or blog owner. It would be necessary to obtain the username and password, known only to the persons responsible for the content of a given website, that is to say information to which the holder almost never has access or cannot have access.

68The applicant concludes that the Board of Appeal, by relying on the evidence of little credibility produced by the intervener and imposing on the applicant for the purpose of undermining that evidence requirements which were impossible to satisfy, placed a heavier burden of proof on the applicant than that which lay with the intervener. That circumstance justifies the annulment of the contested decision.

69EUIPO and the intervener contest the applicant’s arguments.

70It should be recalled that it is for the applicant for a declaration of invalidity – the intervener in the present case – to prove the events constituting earlier disclosure and that that disclosure cannot be proven by means of probabilities or suppositions but has to be demonstrated by solid and objective evidence (see paragraphs 22 and 23 above). It should also be recalled that an applicant for a declaration of invalidity is free to choose the evidence which it considers useful to submit to EUIPO (see paragraph 26 above).

71With regard to the probative value of screenshots of websites (and, in general, evidence derived from the internet), it should be recalled that that probative value may be undermined by invoking facts that concretely suggest a manipulation (see paragraph 49 above).

72In the present case, as was found in the context of the first plea in law, the intervener produced reliable evidence in support of its claim relating to the disclosure of the earlier Fancy Fane and SwirliDo designs. That evidence, the content and date of which were corroborated by several sources, did not give rise to serious doubts as to its reliability and credibility and, in addition, the applicant failed to advance any concrete evidence demonstrating the existence of such doubts. The applicant merely, during the administrative proceedings before EUIPO, raised, in an abstract manner, the possibility that websites, and blogs in particular, may be manipulated.

73In those circumstances, it must be concluded that the rule on the allocation of the burden of proof in the present case was not infringed. Since the intervener produced evidence derived from the internet which demonstrated the disclosure of the earlier Fancy Fane and SwirliDo designs and which did not give rise to serious doubts as to its reliability and credibility, it was for the applicant (which invoked the lack of credibility of that evidence) to demonstrate concretely that lack of credibility, which it failed to do.

74In addition, the applicant’s argument does not demonstrate any infringement of the provisions mentioned in paragraph 66 above. Article 63(1) of Regulation No 6/2002 specifies, inter alia, that, in proceedings relating to a declaration of invalidity, EUIPO is to be restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought. Article 28(1)(b) of Regulation No 2245/2002 is a procedural provision governing the formal requirements of an application for a declaration of invalidity. Article 28(1)(b)(v) provides that that application must contain an indication and a reproduction of the prior designs on which the application is based and documents proving the existence of those earlier designs. Article 28(1)(b)(vi) provides that that application must contain an indication of the facts, evidence and arguments submitted in support of the grounds on which the application is based.

75Moreover, as regards the applicant’s argument set out in paragraph 67 above, it should be pointed out, as EUIPO did, that what was required of the applicant was not to prove that the websites at issue had been manipulated, but to specify concrete circumstances constituting credible indicators of manipulation. The Board of Appeal referred, in paragraph 29 of the contested decision, to ‘clear signs of falsification’, ‘manifest contradictions in the information shown’ and ‘obvious inconsistencies’ that may reasonably justify doubts as to the genuineness of the printouts. Thus, the Board of Appeal did not require the applicant to demonstrate that a website and, in particular, a blog, had been manipulated. It follows that the applicant’s argument set out in paragraph 67 above must be rejected since it is based on a misunderstanding of the contested decision.

76In addition, if the applicant’s argument were to be accepted, it would then be permissible for the holder of a design to deny any disclosure duly documented on the internet, solely on the basis of general and abstract assertions that websites can, in theory, be manipulated.

77In the light of the foregoing considerations, the second plea in law must be rejected.

Third plea in law, alleging infringement of the principle of equality of arms

78The applicant maintains that the Board of Appeal, by finding that the evidence produced by the intervener was credible and placing on the applicant an obligation which it was impossible to satisfy in practice, namely that of concretely demonstrating the manipulation of the content of screenshots of blogs, infringed the principle of equality of arms. The applicant states that the Board of Appeal caused an imbalance between the parties inasmuch as it imposed a heavier burden of proof on the applicant than that imposed on the intervener.

79EUIPO and the intervener contest the applicant’s argument.

80It should be recalled that, according to the settled case-law of the Court of Justice, the principle of equality of arms, which is a corollary of the very concept of a fair trial and aims to ensure a balance between the parties to the proceedings, implies that each party must be afforded a reasonable opportunity to present his or her case, including his or her evidence, under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see judgment of 28 July 2016, Ordre des barreaux francophones et germanophone and Others, C‑543/14, EU:C:2016:605, paragraph 40 and the case-law cited).

81The aim of that principle is to ensure a procedural balance between the parties to judicial proceedings, guaranteeing the equality of rights and obligations of those parties as regards, inter alia, the rules that govern the bringing of evidence and the adversarial hearing before the court (see judgment of 28 July 2016, Ordre des barreaux francophones et germanophone and Others, C‑543/14, EU:C:2016:605, paragraph 41 and the case-law cited).

82The principle of equality of arms applies also, by analogy, to inter partes proceedings before the adjudicatory bodies of EUIPO, like those in the present case (see, to that effect and by analogy, judgments of 10 May 2012, Rubinstein and L’Oréal v OHIM, C‑100/11 P, EU:C:2012:285, paragraph 102; of 8 May 2017, Les Éclaires v EUIPO – L’éclaireur International (L’ECLAIREUR), T‑680/15, not published, EU:T:2017:320, paragraph 23; and of 10 June 2020, Louis Vuitton Malletier v EUIPO – Wisniewski (Representation of a chequerboard pattern), T‑105/19, not published, EU:T:2020:258, paragraph 50).

83In the present case, it must be found that the applicant’s claims, set out in paragraph 78 above, constitute, in essence, a repetition of the claims raised in the context of the second plea in law, which was rejected. It was found that the Board of Appeal was correct to consider that the evidence invoked by the intervener to demonstrate the disclosure of designs which were earlier than the contested design was credible, that the rule on the allocation of the burden of proof was respected by the Board of Appeal and that no obligations, as regards proof, which were impossible to satisfy, were imposed on the applicant.

84As the applicant failed to raise any other arguments in support of the third plea in law, and in the absence of circumstances demonstrating infringement of the principle of equality of arms during the administrative proceedings before EUIPO, this plea in law must be rejected and, as a result, the action must be dismissed in its entirety.

Costs

85Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay the costs incurred by EUIPO and the intervener, in accordance with the forms of order sought by them.

Operative part

On those grounds,THE GENERAL COURT (Tenth Chamber)hereby:

1.Dismisses the action;

2.Orders JMS Sports sp. z o.o. to bear its own costs and to pay the costs incurred by the European Union Intellectual Property Office (EUIPO) and by Inter-Vion S.A.

Delivered in open court in Luxembourg on 20 October 2021.